1. Ericss​on on prostitution

I suppose that we may say that the “standard” case of prostitution is one that involves a woman engaging in sexual relations with a man in exchange for money. But there can of course be “non-standard” cases − for example, ones that involve a male prostitute, or a female client, or payment in some non-monetary form. Indeed, it seems that a certain sort of prostitution can even occur among non-humans. I once read a newspaper article that reported male macaque monkeys in Indonesia being observed “paying” for sex by grooming females.

As you know, many people believe that prostitution is seriously prima facie morally wrong and thus likely to be overall morally wrong under all but exceptional circumstances. Indeed, there are presumably many who believe that prostitution is overall morally wrong under all circumstances. And of course there are many who believe that prostitution ought to be prohibited by law.

In his article, Ericsson defends prostitution against six common charges that have been leveled against it. In his terminology, these are (1) the charge from conventional morality, (2) the sentimentalist charge, (3) the paternalistic charge, (4) the feminist charge, (5) the charge of commercialization of society, and (6) the charge of a disturbed emotional life. According to some of these charges, prostitution is morally objectionable. According to others, it ought to be prohibited by law. Ericsson rejects all of the charges. I won’t discuss them all here, although you should think carefully about all of them and on what Ericsson has to say about them. I’ll restrict my attention to charges (2)-(4) to give you an idea of how his discussion of the charges can and should be handled.

Consider, then, the sentimentalist charge. Ericsson’s discussion of this charge (on pp. 259-62) is rather long and rambling. It is interesting and suggestive, but rather hard to follow. It would surely help if we could cut to the chase and focus on a concise, well-formed argument. I suggest that the charge or objection against prostitution with which Ericsson is concerned in this section of his article is essentially this:

I hope it’s clear that this argument is valid. It also seems clear that the first premise is true, at least in the vast majority of cases. Thus, if the argument goes wrong at all, it will be its second premise that’s the culprit. And it is precisely here that Ericsson objects to the argument. He points out that, even if sex with love is better than sex without love, that doesn’t mean that having sex without love is seriously prima facie morally wrong. (See p. 260, right column.) This is surely correct. Consider this analogy: even if a cake with icing is better than a cake without icing, that doesn’t mean that having a cake without icing is prima facie morally wrong.

Consider, next, the paternalistic charge, which Ericsson discusses on pp. 262-63. “Paternalism” means treating someone for his or her own sake but without his or her consent. Parents do this all the time. (Indeed, the term “paternalism” comes from the word “pater,” which is Latin for “father.”) Parents force their children to do all sorts of things that the children don’t want to do − brush their teeth, for example, or go to the doctor, or go to school. Why? For their own good. The children would run a serious risk of harm if they didn’t do these things. This kind of thinking is what underlies the paternalistic charge against prostitution, which can be put as follows:

Note that this argument, like Arg. 1, is valid but that its conclusion, unlike that of Arg. 1, concerns what the state should do regarding prostitution. Valid or not, Ericsson rejects it because he does not accept all of its premises. He concedes that premise (1) is true in many cases (see p. 262, left column), but he denies premise (2) (see p. 262, both columns). His main point is that, if prostitution is risky, that is typically because of the way prostitutes are currently treated by society. If prostitutes were valued by society in the same way as, say, social workers, then the hazards associated with their occupation would be greatly reduced, because then society would look out for them rather than look down on them.

Kant

Consider, now, the feminist charge, which Ericsson discusses on pp. 263-67. This has to do with the oppression of women that prostitution allegedly facilitates. Underlying the concern with oppression is an idea that plays a central role in the moral theory of the famous German philosopher Immanuel Kant (1724-1804 AD).

According to Kant, it is seriously prima facie morally wrong ever to use anyone merely as a means to an end. (In fact, Kant went even further than this and said that it is overall morally wrong under all circumstances to use anyone merely as a means to an end. But I will stick here with the weaker claim that it is seriously prima facie morally wrong to behave in this way.) The “merely” here is crucial. Kant is perfectly aware that we use people as means to our ends all the time, as when we make use of the services of someone who is waiting on us in a store or a restaurant. Indeed, all commercial (and many non-commercial) transactions would appear to involve one party’s using the other as a means to an end, and Kant finds nothing wrong with that as such. It’s when the use of another person becomes a kind of misuse or abuse by virtue of treating that person as a mere object or resource, rather than as a person in his or her own right, that Kant objects, on the grounds that it fails to accord that person due respect. The kind of oppression of women with which the feminist charge is concerned constitutes such misuse or abuse. This may occur on two levels. First, the client is using the prostitute merely as a means to his own sexual gratification. Second, if society at large, which is male-dominated, tolerates prostitution, then it thereby endorses the view that women in general are to be regarded as mere sexual objects, ripe for exploitation. The charge can be summarized as follows:

Once again, we have a valid argument. In this case, it is the first premise to which Ericsson objects. He notes, as I have just done, that there is a distinction to be drawn between (a) treating someone as a means to an end and (b) treating someone merely as a means to an end, and, while he acknowledges that prostitution essentially involves the former, he denies that it necessarily involves the latter. (See p. 265, right column – p. 266, left column.)

In view of what he deems to be the failure of the various charges against prostitution that he takes into consideration, Ericsson believes that it is reasonable to conclude that there is nothing wrong with prostitution as such and no good reason for the state to prohibit it. It’s important to recognize that, in critiquing the various charges against prostitution, Ericsson has not given, and does not take himself to have given, an independent argument in favor of prostitution. Rather, his point is simply that, if all the “best” arguments against prostitution fail to prove their point, then, unless and until a better one is discovered to take their place, it seems reasonable to hold (in the meantime) that no such argument can be found precisely because the conclusion of any such argument would be false. In brief, Ericsson proposes the following two arguments of Type IV:

Nonetheless, there is also a general theme running throughout Ericsson’s article that does suggest an argument in favor of prostitution, and that theme is the idea that the particular commercial transaction that constitutes engaging in prostitution is, or need be, no different, morally, from other commercial transactions. (See p. 261, right column.) Thus he may be understood as endorsing the following argument of Type I:

Remember that, when someone gives an argument of this sort (an argument from analogy), he’s not saying that there’s no difference between the two ways of acting at issue. That would be silly. In the present context, for example, it would be silly to say that there’s no difference between commercial transactions of a nonsexual nature and commercial transactions of a sexual nature. Obviously there is a difference, since the one kind of transaction is nonsexual whereas the other kind is sexual. The claim, rather, is that this difference makes no difference, morally speaking; that is, that it is an irrelevant difference, from the moral point of view, so that we must reach the same moral judgment, the same verdict, in each case.

***Here is a good place to stop and consider Questions 9, 10, and 11 on the Practice Questions for Module 3.***

2. Critical eva​luation of Ericsson’s article

The success of Args. 4, 5, and 6 of course depends on the success of Ericsson’s response to the various charges contained in Args. 1, 2, and 3. So let’s take a look at these charges and his discussion of them.

A​rg. 1:

What should we make of Ericsson’s denial of premise (2) of Arg. 1? I have noted that Ericsson is surely correct when he says that, even if sex with love is better than sex without love, that doesn’t mean that having sex without love is seriously prima facie morally wrong. But that of course doesn’t itself mean that it is not seriously prima facie morally wrong to have sexual relations with someone you don’t love. Still, it does raise the question why we should think it is seriously prima facie morally wrong to have such relations.

You might be inclined to answer, “Because God says so.” But recall our discussion of the Divine Command Theory. Is it so clear that he does say so? Even if he does, why does he say so? In any case, let’s look at this question without making any religious presuppositions.

There are some people who believe that sexual relations should be confined to procreation, or at least to an attempt at procreation. (Notice that this is not implied by an opposition to the use of contraception. Even within the Catholic Church, for example, it is standard doctrine that the use of contraception is unacceptable but the use of the so-called “rhythm method” to avoid conception is acceptable.) But even if this is correct, the connection with sex without love is tenuous at best, since you can still aim at procreation even if you do so by having sexual relations with someone you don’t love.

There are some people who believe that sexual relations should be confined to married couples, but here too the connection with sex without love is tenuous, since it is perfectly possible for married couples not to be in love with one another.

Nothing I have said shows premise (2) to be false, but I think that it, along with what Ericsson has said, does tend to confirm that finding an adequate reason to accept this premise is not an easy task.

Ar​g. 2:

Mill

In his discussion of premise (2) of Arg. 2, Ericsson would seem to be correct in saying that the risks that prostitutes typically undertake would be considerably reduced if the state valued, rather than denigrated, their contribution to society. But in fact there is another, and quite possibly stronger, reason for rejecting this premise, one that Ericsson declines to discuss but to which he alludes when he mentions John Stuart Mill (see p. 262, left column).

We can distinguish between two forms of paternalism, often called weak paternalism and strong paternalism, respectively. The distinction has to do with whether or not the person who is the target of paternalism is autonomous.

To say that someone is autonomous is to say, roughly, that, in making a decision whether to do something, he or she (a) makes the decision on the basis of an adequate understanding of its probable consequences, (b) is willing to accept these consequences, and (c) is free from undue constraints (such as being pressured into making the decision against his or her will). This is a bit complicated, so let me give you an example.

Suppose that you have some sort of injury or illness and are contemplating surgery in order to improve your condition. In all likelihood, before any surgery takes place, you will be asked to sign a consent form indicating that you do so in such a manner that shows that you satisfy the three conditions of autonomy (a)-(c) just mentioned. Why is this important? Because, as Kant would put it, by having you sign the form and acting in accordance with the terms stipulated on the form, those who are in charge of your treatment would be showing you due respect (they would not be treating you merely as a means to their end), whereas otherwise they would fail, or would be in danger of failing, to show you due respect. After all, it’s your body and your life, and it would be unduly arrogant of those in charge of your treatment not to take your autonomous decision into account. Their doing so would constitute what I have called strong paternalism, which, being disrespectful, seems highly objectionable.

But what if you are unable to make an autonomous decision? What if you are very young, or mentally impaired, or extremely agitated and unable to think straight, or unconscious? Well, then, those in charge of your treatment might look for some kind advance directive that covers the situation, or a proxy might be assigned to make a decision on your behalf. But what if no such directive or proxy is available? Then presumably those who treat you should do so on the basis of their assessment of what would be in your best interests. Of course, they would be doing so without your consent, and so they would be treating you paternalistically, but this would not seem to be objectionable since they would not be ignoring your autonomous decision (given that you are incapable, at least temporarily, of making such a decision). Their treatment of you would be an instance of what I have called weak paternalism.

We don’t object to the sort of paternalism that parents engage in when making decisions on their children’s behalf precisely because it is of the weak variety. And it is of the weak variety because their children, being young, typically fail to satisfy condition (a) above. But notice that it is one thing for a parent to force his child to brush his teeth against his wishes, for example. It would be quite another thing for the state to force you to brush your teeth against your wishes.

Suppose now that someone makes an autonomous decision to engage in prostitution. Then it would be strongly paternalistic for the state to interfere with her doing so. This would seem to constitute a good reason for denying premise (2) of Arg. 2.

Still, we must be careful here. It presumably often happens that someone who engages in prostitution does so on the basis of a decision that is not autonomous. Many people are forced into “the life” and thus fail to satisfy condition (c) above. Many young prostitutes may also fail to satisfy condition (a). If so, there would seem to be no good reason to object to the state’s interfering with their engaging in prostitution. Nor do I think that Ericsson would object here. His objection is to a blanket prohibition of prostitution, one that pays no heed to whether the prostitute has made an autonomous decision to engage in prostitution.

Arg. 3:

I noted above that Ericsson rejects the first premise of Arg. 3, according to which prostitution perpetuates the oppression of women. In her rather complicated article, Pateman would seem to be defending this premise. (See p. 269, right column; p 270, both columns.) But let me note two points. First, when Pateman claims that the prostitute puts her body “up for sale,” this is, as Ericsson himself notes, at best an exaggeration. Perhaps we could say that the prostitute puts her body “up for rent,” but she certainly doesn’t sell it. What she does sell is certain services that involve her using her body, and others using her body, in certain ways. Perhaps, though, this is not a point of any great significance. But the second point that I want to make seems to me much more important, and that is that the feminist charge itself appears to be exaggerated, overblown, even if it is otherwise accurate. This is because, if there is anything fundamentally morally objectionable about prostitution, it surely concerns all prostitution, not just that form of prostitution that at the outset I called the “standard” case, one in which the prostitute is female and the client male. As it stands, Arg. 3 simply doesn’t address this wider issue.

***Here is a good place to stop and consider Question 12 on the Practice Questions for Module 3.***

Of course, the question remains whether there is something fundamentally morally objectionable about prostitution. Ericsson evidently thinks not, but I am inclined to think otherwise. Let me explain.

Remember Kant’s dictum: it is seriously prima facie morally wrong ever to use anyone merely as a means to an end. “Anyone” is to be taken literally here. Kant was concerned not just with how we treat other people but also with how we treat ourselves. He explicitly stated that we must refrain from showing disrespect to ourselves as well as to others. This issue of self-respect is something that neither Ericsson nor Pateman tackles head on (although at one point Ericsson does allude to it), but let’s consider it for a moment.

Suppose that you are wondering what career to pursue after graduation, and so you go to a career counselor for advice. He asks you to fill in a detailed questionnaire, on the basis of which he renders a judgment about which careers would suit you and which would not. “Hmm,” he says, “this is interesting. From the answers you’ve given, it’s clear that you’re wholly unsuited to a wide range of careers. Law, medicine, the military − none of those would suit you at all. But I’m happy to say that there is one career in particular that would seem to fit you like a glove: prostitution!” I imagine that you would find this somewhat disconcerting, but why?

Suppose that you have a close relative − a mother (or father), a sister (or brother), a daughter (or son) − who tells you that she (or he) has become a prostitute. Again, I would imagine that you would find this news disconcerting, but why?

You might of course be put out by your counselor’s advice or your relative’s news simply because you recognize that a life of prostitution is likely, under present-day circumstances, to be hazardous. But I suspect that there is something else, something more fundamental, that would trouble you. Even if it could somehow be guaranteed that all the usual hazards would be avoided, wouldn’t you still be dismayed at the prospect of prostitution for yourself or your relative? Isn’t such a life degrading, one that is deficient in terms of treating oneself with due respect? I’m not sure just how to explain my misgivings here. It has to do with being able to “look yourself in the mirror” and still hold your head high. “Yes, indeed. I’m proud to be a prostitute!” Can anyone say that sincerely?

It may be that I am just harboring a prejudice here, one that is attributable to a narrow-minded upbringing and outlook. (This is presumably what Ericsson himself would say; see Section II of his article on the charge from conventional morality.) Certainly there are many instances of people reporting that they are perfectly happy with a life of prostitution, but you (or at least I) have to wonder whether they are really being honest with themselves.

In any case, given my misgivings, I am inclined to endorse the following arguments:

Notice that the conclusions of these arguments state only that it is seriously prima facie morally wrong to engage in prostitution either as a prostitute, or pimp, or client. That leaves open whether there might be circumstances under which, because of countervailing considerations, it is nonetheless overall morally justifiable to engage in prostitution. I suspect that this is indeed the case. In particular, it seems quite easy to imagine its being overall morally justifiable for someone to become a prostitute (in order, perhaps, to stave off starvation for either herself or her child). It is in part for this reason that, although I have appealed to the Kantian idea that it is seriously prima facie morally wrong ever to use anyone (oneself included) merely as a means to an end, I have not gone so far as to say, as Kant himself did, that it is overall morally wrong under all circumstances to use anyone merely as a means to an end.

Notice also that neither of the arguments just given concerns itself with what the law on prostitution should be. Even if it is seriously prima facie morally wrong to engage in prostitution, the question remains whether the law should nonetheless permit people to do so. If they were to do so as a matter of autonomous choice, then, as Ericsson indicates, it would seem difficult to justify legal prohibition of such behavior.

If you were to challenge any of the premises in the last two arguments, I’m not sure just what I would have to say in their defense. Still, I do hope that you will give the arguments serious consideration.